come so at the option of the holder; and this bill shows no election of the orator to have these bonds become due.

As the case stands, the orator has this debt, equal to the amount of the coupons, secured upon this income large enough to meet it in the hands of the Union Pacific, which he can reach only in equity, and which this bill is appropriate to reach. Unless this is changed by the answer he seems entitled to the relief asked.

The demurrer is overruled; the defendants to answer over by the September rule-day.

MILNE v. DOUGLASS.1

(Circuit Court E. D. Missouri. July 3, 1883.)

1. PLEADING-DEFECT IN ALLEGATION SUPPLIED BY EVIDENCE-PARTNERSHIP. Where, after the dissolution of a firm, one of the partners brought suit in his own name for damages suffered by the firm from a breach of a contract made with it, and the allegations of his petition as to his right to sue in his own name were vague, but it was proved at the trial of the case that the firm had been dissolved by an agreement between the partners, and that the plaintiff, as continuing partner, succeeded by the terms of the agreement to all the rights of the firm, held, that the evidence supplied the defect in the petition. 2. COMMON CARRIER-UNNECESSARY DELAY-DAMAGES.

Where there is unnecessary delay on the part of a common carrier in the delivery of goods which he has undertaken to transport, and the market price of such goods at the place of delivery is lower at the time of delivery than at the time when the delivery should have taken place, the carrier is liable in damages for the difference between the value of the goods at the former and their value at the latter date, at market prices.

This is a suit by John Milne against John M. Douglas, receiver of the Ohio & Mississippi Railway Company, the New York, Pennsylvania & Ohio Railway Company, the New York, Lake Erie & Western Railway Company, and the Red Cross Line of steam-ships.

The plaintiff states in his petition "that he is the successor in business to the copartnership formerly existing and doing business as produce commission merchants at Dundee, Scotland, where he resides, under the firm name of Milne & Berry; that he receives payment of accounts due to, and discharges the obligations of, the said firm; that he carries on the business for his own account at old premises," etc. It appeared from the evidence that the firm of Milne & Berry had been dissolved by an agreement of the partners prior to the institution of this suit, and that by the terms of the agreement Mr. Milne succeeded to all the firm's rights and assumed all their obligations.

George M. Stewart and Paul Bakewell, for plaintiff.
Garland & Pollard, for defendant.

1 Reported by B. F. Rex, Esq., of the St. Louis bar.

TREAT, J. The views of the court heretofore expressed1 control as to the law. The action is for damages sustained in consequence of unnecessary delay by a common carrier in the delivery of goods. The court has been largely aided by counsel, through tabulation of many dates pertaining to the injury, but has still been left to ascertain values at Dundee, Scotland, at two dates, as best it could, through a mass of papers which are vague and uncertain. The first point presented is as to the right of the plaintiff to recover in his own name. The allegation is indistinct; but the defect, if any, may be considered as supplied by the proofs, viz., the right of the surviving partner to sue. An analysis as to the various shipments, and as to the times when the property shipped should respectively have reached Dundee under the circumstances, and also as to the prices at the time when the flour should have arrived and when it did actually arrive, shows that there were only six car-loads which arrived at Dundee on February 18th, instead of February 4th. From February 4th to February 18th there was no change in prices. There were two car-loads which should have arrived on February 4th, but did not arrive until March 26th or March 30th. There was a fall in the prices between those dates of one shilling per sack, making a loss of £20, which, at United States rates, amount to $97.32, for which judgment will be entered.

UNITED STATES ex rel. MYRA CLARK GAINES v. CITY OF NEW

1. MANDAMUS.

ORLEANS.

(Circuit Court, E. D. Louisiana. June, 1883.)

Where it appears, upon the return to a writ of execution against a municipal corporation, that, in reply to a demand made upon him, the mayor stated that the defendant had no property to satisfy the writ; that numerous similar writs had within a few months and within a few days been issued against defendant and returned unsatisfied, and in the return to the rule for the mandamus the defendant sets up that there are judgments against the defendant prior to that of relator wholly unsatisfied,-nothing could more fully establish the right of the relator to have a mandamus to cause the levy of a tax to pay her judgment. 2. MUNICIPAL CORPORATION.

Where a muncipal corporation, by the authority of a statute, contracted a liability, in the absence of any other provision of the law for payment, she necessarily had power to bind herself, and did bind herself, to pay, by the exercise of those "powers incident to municipal corporations" with which she was endowed by the statute, i. e., by levying a tax.

8. SAME-DAMAGES FOR A TORT-LA. CIVIL CODE, 2315.

"Every act whatever of man that causes damage to another, obliges him through whose fault it happened to repair it." La. Civil Code, 2315. The meaning of this is that under Louisiana law the wrong done by one human

113 FED REP. 37.

Reported by Joseph P. Hornor, Esq., of the New Orleans bar.

being to another, or to his estate, creates an obligation; i. e., brings at once into existence the relation of debtor and creditor between the wrong-doer and the injured party. This provision includes municipal corporations as among those who are subject to this obligation.

4. SAME DEBTOR'S PROPERTY PLEDGED TO CREDITORS-LA. CIVIL CODE, 3183. "The property of the debtor is the common pledge of his creditors." La. Civil Code, 3183. The meaning of this is that the property of the debtor is pledged so that it might be subjected to that process of the creditor which may be suitable to the case; the property of an individual debtor may be reached by seizure under a writ of fieri facias; the property of a debtor which is a municipal corporation may be reached by taxation.

5. SAME-RETROACTIVE LAWS-LA. CIVIL CODE, 8.

"A law can prescribe only for the future; it can have no retrospective operation." La. Civil Code, 8. This article has the paramount force of a constitutional provision; it is a regulation of the power of all subsequent laws, whether they be found in future constitutions or future statutes; it is a statutory declaration and covenant on the part of the state incapacitating subsequent laws from disturbing any obligations.

When these three provisions are put together, it results that the state placed the wrong-doer under an obligation; for the fulfillment of that obligation subjected all his present and future property to a pledge; and contracted that the law-making power should pass no law which should affect that obligation or that pledge. It follows, then, that at whatever time the obligation of the defendant to the relator was incurred, at that time there was, by operation of the statute, an inviolable pledge created, which should operate as well upon the future as upon the present, and should give her payment by taxation. 6. CONDITIONAL OBLIGATIONS.

The jurisprudence of Louisiana is settled that in conditional obligations the law which exists at the time the obligation was contracted, and not that which exists when the condition takes place, governs the rights of the parties.

7. LA. CONSTITUTION, ART. 209; Act 93 of La. OF 1856, P. 68.

The article 209 of the present constitution of Louisiana, and the act No. 93 of 1856, p. 68, had no reference to already existing obligations of any sort. 8. LA. CONSTITUTION, ART. 11.

"All courts shall be open, and every person, for injury done him in his rights, lands, goods, person, or reputation, shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay." La. Const. art. 11. This provision is applicable to the redress for all wrongs done to person or property, and to that extent gives, for the redress for wrongs, a remedy completely adequate; i. e., a satisfaction limited only by the property of the debtor.

Application for Mandamus.

W. R. Mills, A. Goldthwaite, and J. Ward Gurley, Jr., for the relator.

Charles F. Buck, City Atty., for the respondent.

BILLINGS, J. This cause is submitted upon an application for a mandamus to compel the levy of a tax to pay a judgment rendered in this court. There are two preliminary objections: (1) That there has been issued no alternative writ of mandamus. The answer to this objection is that the proceedings in this cause-namely, the petition, which, together with an order to show cause, has been served upon the persons against whom the writ is sought-are such as have been invariably followed in this court in the hundreds of causes where similar writs have been allowed, and constitute precisely the mode of procedure pointed out by the Code of Practice. That an alternative writ is not a prerequisite for this process, see Com'rs v. Aspinwall,

24 How. 385. (2) That no return of nulla bona upon the writ of fieri facias has been made. The mandamus is asked for the amount of the judgment, less $40,000, the amount covered by a seizure under the writ of execution. The return of no property would be only very ⚫ strong evidence that the mandamus was necessary for the recovery or collection of the judgment. The proof is that the mayor, when demand was made to point out property, stated to the marshal that the defendant had none wherewith to satisfy the writ, either wholly or in part; that numerous similar writs have, within the past few months and within a few days, been issued against the defendant and returned unsatisfied; and in the defendant's return the ground is set up that there are judgments against the defendant prior to the relator's, and wholly unsatisfied, amounting to $700,000, or thereabouts. No return in this case could more fully establish than does this evidence that the relator must have the levy of a tax to pay her judgment, or that it will remain unpaid. The evidence shows, and, indeed, the return of the defendant admits this, and pleads a statute which would dispense with a fieri facias. Under such proofs, and with such a return, the return of the execution is immaterial. High, E. Rem. § 377.

The real question, then, comes to be considered, has the relator shown herself to be entitled to a tax? This means, has the law-making power authorized and bound the city of New Orleans to assess and levy and collect a tax to pay relator's judgment?

The relator's demand, which is represented by this judgment, is for taking possession of her land and preventing her recovery of it from the year 1837 to the year 1877. The various charters of the city of New Orleans show that prior to and since the year 1836 the city has had "all such rights, powers, and capacities as are incident to municipal corporations," and also the capacity of "acquiring, enjoying, and alienating all kinds of property, real, personal, and mixed." Acts 1805, p. 46, § 1, and p. 56, § 6; Acts 1836, p. 31, § 4; Acts 1852, p. 48, § 22; Acts 1856, p. 136, § 1; and Acts 1870, Ex. Sess. p. 30, § 2.

The record shows that the debt or obligation merged in the judgment sprang out of the acquisition, enjoyment, and alienation of real property, and was, therefore, incurred in the exercise of the powers specially granted. This is conclusively settled by the judgment itself in this case, as well as by that in the case of Gaines v. New Orleans, 6 Wall. 716, and 15 Wall. 624.

In Rabassa v. Orleans Navigation Co. 5 La. 463, 464, the court state the question submitted to be whether a corporation is responsible for an injurious act in relation to a matter within the scope of its corporate objects. They answer the question in the affirmative, and say:

"If they [the corporation] rented a house and committed waste during the lease, or made themselves responsible by the non-performance of any obliga

tion which the law imposes on the lessee, it can hardly be questioned that they would be bound to make good the loss. If it be objected that, in the case last put, the responsibility grew out of a contract, we can hardly see how their liability would be varied, if, without a contract, they entered upon the property of another and used it for corporate purposes."

Since the corporation, by the authority of the statute, contracted the liability, in the absence of any other provision of the law for payment, she necessarily had power to bind herself, and did bind herself, to pay by the exercise of those "powers incident to municipal corporations" with which she was also endowed by the statute, i. e., by levying a tax. This reasoning is adopted and this conclusion is maintained by the supreme court of the United States with reference to a debt evidenced by a bond; but the conclusion is just as unavoidable with respect to all debts which originate in the exercise of granted powers.

The facts which beyond doubt authorize the conclusion that the power to tax exists are these: That the obligation is contracted or springs up inside of the granted powers; that there is no other mode of performance; that the power to tax is one of the usual powers incident to cities, and is therefore granted; and the conclusion is established with equal certainty whether the obligation be written or verbal, express or implied, resulting from a contract or tort, provided the act creating the obligation is within the delegated corporate faculties. In the language of the supreme court in Rabassa v. New Orleans Nav. Co., supra, "We cannot see how the liability would be varied if, without a contract, they [the corporation] entered upon the property of another and used it for corporate purposes."

The supreme court of the United States, in U. S. v. New Orleans, 98 U. S. 393, says: "When such a corporation is created, the power of taxation is vested in it as an essential attribute, for all the purposes of its existence, unless its exercise be, in express terms, prohibited." Again, at page 397, the court say: "As already said, the power of taxation is a power incident to such a corporation, and may be exercised for all the purposes authorized by its charter or subsequent legislation."

I think it is established beyond successful controversy that the city of New Orleans has the power, and may be compelled, to levy this tax, unless, as is urged by the defendant, the power of taxation, with reference to this indebtedness, is qualified and controlled by the statute of 1856, and by article 209 of the constitution of 1879.

The act of 1856, No. 93, p. 68, provides that "the power to tax is limited to 1 per cent. of the assessed value of real estate and slaves, provided that such an amount shall be raised thereby as shall be suffi cient to pay the interest of the present city debts, together with the gradual reduction of the capital of the consolidated debt, as required by the laws now in force."

The article 209 of our present constitution is as follows: "And no